Sullied by sewer back-ups, Cherokee resident files suit against tribe

A member of the Eastern Band of Cherokee Indians is suing the tribe over sewage overflows onto her property, which she says poses a health threat to her family.

Linda Lambert filed a suit against the tribe in May 2011 over alleged sewage spills from a nearby manhole and sewer pipes. In her complaint against the tribe, Lambert lists 17 specific days that she says sewage overflowed onto her property and into Adam’s Creek during the past two years.

The tribe, however, is asserting that the number of actual sewage overflows is much less. The tribe also contends the overflows were promptly dealt with.

In court documents, Lambert states that raw sewage from the tribe’s sewer treatment plant is seeping onto her land and into nearby Adam’s Creek. Such overflows forced her family to move elsewhere and prevented her from being able to fully enjoy her property, including fishing.

Lambert is seeking $60,000 in damages, including physical, mental and emotional stress. The damages are linked to claims of negligence, trespassing, nuisance, violation of her civil rights and the taking of her property without compensation.

“The fact that it’s overflowing is not in doubt,” said Mark Melrose, Lambert’s attorney with Melrose, Seago and Lay based in Sylva. “I know there are dozens of people who know about it.”

Melrose said they will know more information in the next couple of months as potential witnesses are interviewed.

In court documents, the Eastern Band states that on at least one occasion sewage has leaked into Adam’s Creek, the Oconaluftee River and onto Lambert’s land. However, the discharge was partially treated and posed no health hazard.

“There was an episode, yes,” said Chad Ray Donnahoo, an Asheville attorney hired by the ECBI for this suit. “All that was reported to the EPA.”

Donnahoo said that the tribe did its due diligence by testing any overflows to make sure the seepage was not hazardous and reporting any incidents to the Environmental Protection Agency.

The tribe is in the process of updating its dated sewage system and treatment plant. The last comprehensive upgrade was in 1997 when capacity of the plant was tripled — timed with the opening of Cherokee’s first casino and intended to handle the likely increase in volume. During the past 15 years, the casino has undergone two major expansions — including the recent $633-million enlargement. Adding additional capacity will be part of the coming upgrades, which are in the early planning stages.

The Eastern Band is questioning why Lambert waited until May 2011 to file a formal complaint.

Lambert went before tribal council a couple times before taking legal action, according to court documents.

“She has tried to seek a resolution politically,” Melrose said. “And, she didn’t get any relief.”

Tribal Council passed two resolutions — one in 2008 and another in 2010 — promising to remedy the overflow problems. However, the complaint against the tribe states that nothing has been done and sewage continues to leak onto Lambert’s land.

The tribe “negligently and intentionally” acted or did not act in a way that resulted in “the negligent and wrongful management, operation, maintenance and repair of the Tribe’s sewage collection and transmission system,” states the complaint.

The tribe is hoping to get the case dismissed on the grounds of sovereign immunity. Some government entities are immune against certain legal actions. However, if the entity obtains insurance to cover possible lawsuits, it waives its right to immunity.

“We are currently investigating with our insurance provider the coverage issues,” Donnahoo said.

Right now, it is unclear whether or not the Eastern Band’s insurance plan would cover such as case.

“Even if the tribe has the legal escape clause, (I’d hope) that they would do the right thing by tribal members,” Melrose said.

An aging system

Cherokee is required to make regular reports to the Environmental Protection Agency, which regulates the tribe’s wastewater discharges. The tribe is also supposed to report any overflows, but it failed to do so prior to November 2010, said Stacey Bouma, an environmental engineer with the agency.

Bouma added that it is not that uncommon: many plants do not realize that they must report overflows, whether they happened on land or in water. Many only report sewage leaks into waterways.

Since November 2010, the tribe has filed 23 reports with the EPA ranging from benign clogged lines to bona fide overflows. The majority are of little consequence.

The overflow reports include a couple of incidents of pipes being harmed during construction, which resulted in release of sewage.

After receiving complaints about overflows on the reservation, the EPA conducted an investigation and found that heavy rain was responsible for a number of overflows.

“The pipes couldn’t handle capacity when it rained,” Bouma said.

While rainwater is supposed to flow through gutters and storm drains, rain water is being funneled into the sewer system in some areas of Cherokee and overwhelming the lines.

“We have had a lot of problems with infiltration,” said Larry Blythe, vice chief for the Eastern Band of Cherokee Indians. “That pushes capacity to the limit.”

This is a common problem in towns with older sewage systems — nearby Bryson City has been plagued by this for years.

Overflows as a result of rain flooding the sewer system are luckily diluted, since the sewage is mixed with rainfall or melting snow.

In addition to reporting any water contamination, the treatment plant is required to tell the EPA if anything is coming out of a manhole connected to the sewer system.

The investigation also identified a manhole near Adams Creek as “a problem area,” Bouma said.

When a pump malfunctions or a leak in a sewage line occurs, the tribe reports it to the EPA, Blythe said. Many of the pipes that carry raw and treated sewage to and from the plant are old, and the tribe is working to replace them, he said.

The Eastern Band is planning to upgrade its sewer system and wastewater treatment plant, replacing old equipment and increasing its capacity. Blythe said the tribe is still working through estimates of what exactly the improvements will consist and how much they would cost.

He declined to address any legal issue regarding the wastewater treatment plant.

The treatment plant was first built in 1984 and was could process 0.9 million gallons of sewage each day. In 1997, however, the plant was updated and its capacity more than tripled. It is now permitted to treat up to 3 million gallons each day.